State v. Welch

• Decision Date: 14 August 2020
• Docket Number: No. 19-255,19-255
• Citation: 249 A.3d 319
• Parties: STATE of Vermont v. Gregory S. WELCH
• Court: Vermont Supreme Court

249 A.3d 319

STATE of Vermont

v.Gregory S. WELCH

No. 19-255

Supreme Court of Vermont.

April Term, 2020

August 14, 2020

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

COHEN, J.

¶ 1. Defendant Gregory Welch appeals his conviction on jury verdict of lewd and lascivious conduct. At trial, the State introduced evidence that defendant fled when police tried to arrest him, and the court instructed the jury on the use of flight evidence as suggesting consciousness of guilt. Defendant argues that the court erred in failing to instruct jurors that they could not return a guilty verdict based solely on the evidence of flight. We affirm.

¶ 2. The State elicited the following evidence at trial. Complainant lived alone in a home on a parcel of land in Newbury, Vermont. Defendant, complainant's nephew by marriage, owned a trailer with his brother on an adjoining parcel. The brothers would visit the trailer on the weekends and complainant would often join them for drinks and conversation. The relationship between defendant and complainant was amicable but platonic.

¶ 3. On the evening of Friday, June 2, 2017, complainant saw the brothers and defendant's son drive to the trailer, and she drove over to say hello. There, she drank a beer with defendant before returning to her home for the night. Back home, complainant changed into her sleepwear and went to bed. Before long, she heard someone come through her door and found defendant on her bed, on top of her. Defendant tried to kiss complainant, grabbed her arm, touched her breasts, and told her he loved her and wanted to sleep with her. Complainant struggled to get defendant away from her and shoved him off the bed. Defendant lingered in the home as complainant repeatedly told him to leave. He left only when complainant said she would activate her medical-alert device. As defendant was leaving, complainant heard a "crash" from the direction of the home's doorway. Complainant then messaged her son and called her daughter, and her daughter in turn called the police.

¶ 4. After speaking with complainant, two state troopers went to defendant's trailer to question him about the incident. One trooper knocked on the front door while the second watched a rear entrance. Defendant spoke with the trooper at the front door briefly and the trooper asked him to accompany the officers to the station. Defendant said he needed to put on shoes and asked if he was under arrest. The trooper answered affirmatively and allowed him to go back inside and put on shoes, which defendant did, closing the door behind him. After several minutes, the rear trooper walked towards the front of the trailer, whereupon defendant's brother opened the front door and said defendant had run out the back door. The troopers searched the trailer and the surrounding woods and roads without success. They eventually arrested defendant on Sunday as he tried to leave the area in a vehicle.

¶ 5. The State charged defendant with lewd and lascivious conduct, unlawful trespass, and resisting arrest. Defendant pled guilty to the latter and was tried by jury on the first two charges. At trial, the State introduced evidence of defendant's flight and proposed a jury instruction that flight could prove consciousness of guilt. Over defendant's objection, the court included the instruction and observed that more prejudice would result from its omission than its inclusion because the jury had already heard the flight evidence and needed to be instructed on its use. The court and the parties discussed the language of the instruction, which the court noted was based on the instruction upheld in State v. Unwin, 139 Vt. 186, 424 A.2d 251 (1980). Defendant did not object to the court's proposed language at the charge conference or after the jury was instructed.

¶ 6. The court first instructed the jury on several general particulars, including, "You must not single out any one instruction as stating the law. You must consider the instructions as a whole." It instructed jurors on the presumption of innocence, stating, "The presumption of innocence means that you must find [defendant] not guilty unless, after careful and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt that he is guilty." The court explained, "You are the sole judges of the evidence. The credibility of the witnesses and of the weight to be given to the testimony of each of them is up to you." Then came the flight instruction:

There has been evidence introduced in this case tending to show the defendant fled after being informed by the Vermont State Police that he was being arrested due to the complaint made against him by [complainant]. If you find that he did flee, it does not raise any presumption of guilt. Such evidence has limited probative value, because there are many reasons for such conduct, such as fear, ignorance, confusion, or the like, which are consistent with the claim of innocence. But you are entitled to consider these facts if you find such to be the case as tending to show consciousness of guilt on defendant's part. In weighing any evidence of flight, consider the defendant's state of mind, his mental capacity and reasoning powers, along with all the other evidence as you find it, and give any evidence of flight and such other matters such weight as you think they deserve.

The court explained that the State had the burden to prove guilt beyond a reasonable doubt, which meant proving each of the essential elements of the offense beyond a reasonable doubt. After the court outlined the elements of the offenses and repeated the State's burden after each count, the jury deliberated and returned a guilty verdict on the lewd-and-lascivious-conduct charge and a not-guilty verdict on the unlawful-trespass charge.

¶ 7. On appeal, defendant argues that the court erred in failing to instruct the jury that it could not return a guilty verdict based solely on the evidence of flight. Relatedly, he maintains that because the court instructed jurors that they could "give any evidence of flight and such other matters such weight as you think they deserve," the jury could have given the flight evidence enough weight to return a guilty verdict on that basis alone. As defendant acknowledges, because he failed to object to the court's proposed language, we review the jury instructions only for plain error. State v. Alzaga, 2019 VT 75, ¶ 18, 211 Vt. 111, 221 A.3d 378.

¶ 8. We look to four factors in determining whether plain error was committed: "(1) there must be an error; (2) the error must be obvious; (3) the error must affect substantial rights and result in prejudice to the defendant; and (4) we must correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285. Plain error in jury instructions is found only in extraordinary circumstances, "when the entire charge undermines our confidence in the verdict" and "the error affected a substantial right and had an unfair prejudicial impact on the jury's deliberations." Alzaga, 2019 VT 75, ¶ 18, 211 Vt. 111, 221 A.3d 378 (quotations omitted). We read jury instructions in their entirety, not piecemeal, to ensure that they "breathe the true spirit of the law, and ... there is no fair ground to say that the jury has been misled." State v. Rounds, 2011 VT 39, ¶ 22, 189 Vt. 447, 22 A.3d 477 (quotation and alteration omitted). "Although the trial court has the responsibility to instruct the jury fully and correctly on every point raised by the material evidence, the degree of elaboration lies within its sound discretion." Knapp v. State, 168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.).

¶ 9. When evidence of flight is properly admitted in a criminal trial, the jury can rely on it as circumstantial evidence of guilt. See State v. Scales, 2017 VT 6, ¶¶ 8-10, 204 Vt. 137, 164 A.3d 652 (discussing admissibility considerations). If the court admits the evidence, it must give a limiting instruction to guide the jury's use of the evidence. Id. ¶ 19. In State v. Unwin, we observed that evidence of flight has little probative value, and we held that such evidence "is not sufficient by itself to support a conviction." 139 Vt. at 193, 424 A.2d at 255. But we have never required trial courts to instruct juries in these precise terms and we have consistently upheld instructions using different language.

¶ 10. For example, in Unwin, the defendant stabbed a person and fled from the scene of the crime. At trial, the State introduced evidence of his flight, and the court instructed the jury as follows:

There has been evidence introduced in this case tending to show that the defendant fled from the scene of the incident. If you find that he did this, it does not raise any presumption of guilt because there are many reasons for such conduct including fear, ignorance, confusion or the like, which are consistent with the claim of innocence. But you are entitled to consider these facts if you find such to be the case as tending to show a consciousness of guilt on his part. Weighing it along with his state of mind, mental capacity and reasoning powers, you are to give these matters such weight as you think they are entitled to under the circumstances.

Id. at 193, 424 A.2d at 255-56. Although the trial court did not explicitly instruct that flight evidence has little probative value and is not sufficient by itself to support a conviction, we rejected the defendant's argument that the instructions "encouraged the jury to give too much weight to the fact of the defendant's flight alone," and we held that the instructions were carefully limited and nonprejudicial. Id. at 194, 424 A.2d at 256. We upheld the instructions...